GLOBAL FORMWORK (NIG) LTD v. MUSA & ORS
(2022)LCN/16736(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, May 18, 2022
CA/A/1042/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
GLOBAL FORMWORK NIG. LTD APPELANT(S)
And
1. ABDULLAH MUSA 2. THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY 3. THE MINISTRY OF THE FEDERAL CAPITAL TERRITORY ADMINISTRATION RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT
In my opinion and humbly, the Appellant cannot totally exonerate itself or seek to appear helpless and purely a victim of the actions of the 2nd and 3rd Respondents. The Appellant remains responsible for the kind of agreement it enters into and is bound by the terms and conditions therein. It was incumbent on the Appellant to have ensured that the terms of the Agreement it was entering into with the 2nd and 3rd Respondents were clear and workable for its developmental projects. The Appellant is not permitted at the point of execution to complain. See the cases of JADESIMI V. EGBE 2003 36 WRN 79, UNION BANK OF NIGERIA V. OZIGI 1994 3 NWLR PT. 333 385 and E. N. NWAKA V. SPDC 2003 3 MJSC 136. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Judgment of the Federal Capital Territory High Court delivered by Hon. Justice Peter O. Affen on July 31st 2019 wherein the alternative claims of the 1st Respondent (the Plaintiff at the Court below) were granted in part against the Appellant (the 1st Defendant at the Court below) and the main claim was dismissed.
The 1st Respondent claimed in the main as follows against the Appellant, and the 2nd and 3rd Respondents (the 2nd and 3rd Defendants at the Court below):
i) A declaration that the failure of the 1st Defendant to complete and deliver to the plaintiff the Type 1B2 bedroom Residential House at Plot 4, Anambra Street, unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja since 15/10/2012 or thereafter is a breach of the contract of 18/6/2008 the plaintiff having completed payment of N7,980,000 to the 1st Defendant since 15/10/2012.
ii) An order of specific performance that the 1st defendant complete and deliver the Type 1B 2 bedroom Residential House at Plot 4, Anambra Street, unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja to the plaintiff within 3 months from the date of the Judgment (or as the Court may order) and that the 2nd and 3rd defendants issue the relevant documents of title in respect of same to the plaintiff.
iii) An order that where the 1st defendant fails to complete and deliver the fully completed Type 1B 2 bedroom Residential house within 3 months from the date of judgment or as the Court may direct the plaintiff shall take physical possession of Plot 4, Anambra Street unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja and complete same with his money to be reimbursed by the 1st defendant as the Court may direct.
iv) An order of perpetual injunction restraining the 2nd and 3rd defendants from revoking the Development Lease Agreement entered into with the 1st defendant on 2/7/2004 as it affects the rights and interest of the plaintiff in Plot 4, Anambra Street unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja or another area in Saraji District as the Court may determine in the circumstances of this case.
v) General damages of N10 million.
vi) And such order or other orders as the justice of the case may demand.
In the alternative
i. A declaration that the failure of the 1st Defendant to complete and deliver to the plaintiff the Type 1B Residential House at Plot 4, Anambra Street, unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja since 15/10/2012 or thereafter is a breach of the contract of 18/6/2008, the plaintiff having completed payment of N7,980,000 to the 1st Defendant since 15/10/2012.
ii. Refund of the sum of N7,980,000 by the 1st Defendant to the plaintiff being monies paid by the plaintiff to the 1st defendant for completion and delivery of Type 1B Residential House at Plot 4, Anambra Street unit No. 003-05 within Precinct 1, Malaysian Gardens, Saraji District, Abuja which the 1st Defendant has failed, refused and neglected so to do.
iii. Payment by the 1st defendant to the plaintiff of Bank interest of 21% on the said N7,980,000 from 16/11/2011 till judgment and 10% after judgment until final liquidation.
iv. An order that where the 1st defendant fails or neglects to refund the said N7,980,000 to the plaintiff within 3 months from the date of the judgment or as the Court may direct, the 1st, 2nd and 3rd defendants shall allocate a piece or parcel of land (along or close to the main road) worth N7,980,000 measuring at least 2,500 sqm or as the Court may determine at Malaysian Gardens, Siraji District and the 1st, 2nd and 3rd defendants shall issue the relevant documents of title to the plaintiff within 6 months from the date of judgment or as the Court may direct.
v. General damages of N20 million for breach of contract.
vi. And such order or other orders as the justice of the case may demand.
The facts as contained in the Record are that the Appellant, a private developing Company advertised houses for sale at the Precinct 1, Malaysian Gardens, Saraji District Abuja being part of a large Housing scheme under a Deed Agreement between the 2nd and 3rd Respondents and the Appellant. The 2nd and 3rd Respondents are the official authority to provide certain infrastructures for the scheme and give approvals for buildings and other activities of the Appellant in respect of the scheme. The 1st Respondent being interested entered into a contract with the Appellant on 18/6/2008 to buy a house, Type 1B at Block/Plot 4, Anambra Street, unit no. 03-05 in Malaysian Garden, Saraji District. The house was changed by the contract of 16/11/2011 to House Type 1B Block/Plot 4, Anambra Street, Unit No. 03-08.
According to the Appellant, all the housing units in the Malaysian Estate project were waiting for the primary road and infrastructures in compliance with the Capital Territory master plan and approval from the 2nd and 3rd Respondents which was not granted in spite of entreaties and the arbitration award on February 21st, 2014 in favour of the Appellant. That, an appeal on the arbitral award is pending before this Court, Appeal NO. CA/A/277/2017. It is the position of the Appellant that the house paid for by the 1st Respondent had been built since 2009. That, by clause 14 of the extant agreement between the Appellant and the 1st Respondent, the Appellant is exempted from liability on the ground of force majeure. That the Court wrongly failed to give effect to Clause 14 and instead proceeded to find in favour of the 1st Respondent.
Consequently, the Appellant, aggrieved by the decision of the Court has appealed and filed his Notice of Appeal on September 16th, 2019 with two (2) grounds.
The reliefs being sought are:
i. “Allow the appeal
ii. Set aside the Order for the refund of the sum of N7,980,000 and give effect to clause 14 of the parties (sic) agreement for the parties in the main time to await the outcome of the Appeal/litigation.”
The parties complied with the Rules of this Court by filing and the exchange of their briefs. Mr. Victor Agunzi Esq. settled the Appellant’s brief which was dated December 19th 2019 and filed December 20th 2019 and urged that the appeal be allowed. On the other hand, the 1st Respondent’s brief dated March 24th 2020 and filed March 25th 2020, which was settled by M. E. Oru SAN who adopted and urged the Court to dismiss the appeal.
The 2nd and 3rd Respondents did not file any process in respect of this appeal.
ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
APPELLANT’S SOLE ISSUE
“Whether the Lower Court was right in law to have ordered for the refund of the sum of N7, 980, 000. 00 to the 1st Respondent (Plaintiff) in view of the provision of clause 14 of the parties’ extant and binding agreement Exhibit D5 which exempts liabilities of the parties from any force majeure event and for the time necessitated by such event (Grounds 1 and 2)”.
1ST RESPONDENT’S SOLE ISSUE
“Whether the trial Court was right in law to have ordered the refund of the sum N7,980,000 to the 1st Respondent in view of the fact that consideration has failed and the Appellant was in breach of the contract between the Appellant and the 1st Respondent.”
As empowered to do, I shall adopt the Appellant’s issue with some modifications as follows:
“Whether or not the Lower Court was right in law to have ordered the refund of the sum of N7,980,000 to the 1st Respondent (Plaintiff) given the evidence before it”.
APPELLANT’S SUBMISSION
Mr. Victor Agunzi Esq. learned Appellant’s Counsel submitted that the admission and evidence of the PW 1 that the extant agreement between the parties was that of 16/11/11, which was admitted as Exhibit D5, settled the issue whether or not Clause 14 on Force majeure applied. That the case of the Appellant with evidence at the Court below was that its failure to deliver the 1st Respondent’s house was due to the failure and refusal of the 2nd and 3rd Respondents to fulfill their obligations under the Development Lease Agreement with the Appellant. And that the non-compliance with the arbitral award by the 1st and 2nd Respondents in favour of the Appellant to the effect that all the outstanding approvals for building should be granted to the Appellant. He contended that the subsistence of Appeal No. CA/A/277/2017 by the 2nd and 3rd Respondents against the arbitral award continues to hamper the necessary performance of the Appellant’s obligations towards the 1st Respondent. He submitted therefore that the Court below was bound to pronounce in favour of the agreement between the Appellant and the 1st Respondent in accordance with the principle of sanctity of contract and in support cited the cases of AFROTECH V. MIA & SON LTD. 2000 12 SC PT. 1, OWONIBOYS TECHNICAL SERVICES LTD V. UNION BANK NIGERIA LTD. 2003 15 NWLR PT. 844 545 and NIGERIAN PORTS AUTHORITY V. AHMED 2017 ALL FWLR PT. 892 1078. Further that the Appellant agreed as to what constituted force majeure and that the Court was wrong to have ordered that the Appellant should refund the money paid by the 1st Respondent for the sale of the house. In conclusion, he urged that the decision of the Court below be set aside and effect be given to Clause 14 in the extant agreement between the Appellant and the 1st Respondent.
1ST RESPONDENT’S SUBMISSION
Mr. Mercel Oru, the learned Silk for the 1st Respondent submitted that force majeure/frustration as contained in Clause 14 was inapplicable in the circumstances of the case as it was self-induced by the Appellant. That it was a deliberate act of the Appellant to frustrate the contract. He argued that the Appellant’s position cannot hold water as the 1st Respondent was not a party to the agreement between the Appellant and the 2nd and 3rd Respondents and neither was the agreement between the Appellant and the 1st Respondent tied to the success or and/or implementation of the Appellant’s agreement with the 2nd and 3rd Respondents. And that the Appellant must come with clean hands to equity. In support, he cited the cases of JOSEPH CONSTANTINE SS. LINE LTD. V. IMPERIAL SMELTING CORPN. LTD. 1942 A.C 154 166-167 and REVENUE MOBILIZATION, ALLOCATION & FISCAL COMMISSION V. UNITS ENVIRONMENTAL SCIENCES LTD. 2011 9 NWLR PT. 1252 379. He argued that the primary infrastructure does not in any way affect the building and completing the house of the 1st Respondent and that in Clause 7 of the Development Agreement, the Appellant claimed it could provide primary and arterial infrastructures where the 2nd and 3rd Respondents failed to do so and the Appellant would thereafter be reimbursed. Further that the arbitration/arbitral award had nothing to do with the agreement between the Appellant and the 1st Respondent and cited in support the cases of ALFOTRIN LTD. V. A-G FEDERATION 1996 9 NWLR PT. 475 634 and THOMAS CHUKWUMA MAKWE V. CHIEF OBANUA NWUKOR & ANOR 2001 LPELR-1830 SC. 1, amongst others cited. He submitted that the Appellant was in the position to deliver the house to the 1st Respondent and follow up the provision of the primary infrastructures with the 2nd and 3rd Respondents. He contended that the contract was frustrated because it became more expensive than either party had anticipated at the time of negotiation and cited in support the case of NWAOLISAH V. NWABUFOH 2011 14 NWLR PT. 1268 600. And that it would be unjust to allow the party which failed to perform its part of the contract retain payment made in consideration of the performance of its part. He referred the Court to Section 4 (2) of the Law Reform (Contracts) Act Cap 517, Laws of the Federal Capital Territory and the cases of ALHAJI HARUNA MUHAMMED & ANOR V. MAGLODAN NIGERIA LTD. 2017 LPELR-43191 CA, STAR FINANCE AND PROPERTY LTD. V. NDIC 2012 LPELR-8394 CA and U.B.N. PLC. V. AWMAR PROPERTIES LTD. 2018 10 NWLR PT. 1626 64.
The learned Silk submitted that by the agreement between the Appellant and the 1st Respondent, the former is expected to build and handover to the 1st Respondent the completed building within 11 months and the matter of arbitration did not stop the Appellant from building the 1,800 housing units. He argued that the existence of an appeal before this Court has no bearing on the instant appeal more so as the 1st Respondent is not a party therein. In conclusion, he urged that the judgment of the Court below be upheld and the instant appeal be dismissed.
THE COURT
THE SOLE ISSUE
“Whether or not the lower Court was right in law to have ordered the refund of the sum of N7,980,000.00 to the 1st Respondent (Plaintiff) given the evidence before it”.
I have very carefully considered the submissions made on behalf of the parties along with all the processes before the Court, together with the findings of the Court. Having so carefully done, one proceeds in the consideration and determination of the sole issue herein as follows:
The Court found in its evaluation of evidence that the parties are ad idem on the following: that the 1st Respondent paid a total sum of N7,980,000.00 to the Appellant to develop and deliver Type 1B Residential House at Plot 4, Anambra Street, Precinct 1, Malaysian Gardens, Saraji District, Abuja, with Exhibits P1A-C issued by the Appellant to the 1st Respondent. It found that the Appellant’s right to develop the Malaysian Gardens is contained in the Development Lease Agreement, D4, and that it was on the strength of it that the Appellant made offers to and/or entered into agreement with the 1st Respondent and other subscribers. See page 550 of the Record. It then concluded thus on page 551 of the Record:
“…It is therefore obvious that what happens to Exhibit D4 would have a direct bearing on the agreement between the 1st Defendant and subscribers, inclusive of the Plaintiff.”
It found contrary to the argument of the 1st Respondent and in favour of the Appellant that its claim that there was frustration of the terms of its contract with the 1st Respondent was not self-induced. It stated thus in that regard on pages 551 to 552 of the Record:
“The evidence adduced before me reveals that the 1st Defendant initiated arbitral proceedings against the 2nd and 3rd Defendants, praying inter alia for “an order compelling the Respondents to forthwith grant and endorse all final approvals required in respect of all the relevant aforesaid working Plans and Drawings duly submitted to it by the Applicant (Claimant) Company necessary for the Applicant’s continued development of the Malaysian Gardens Estate and/or compelling the Ministry to meet its aforesaid basic obligations under the Development Lease Agreement within and not later than ONE MONTH”; and “an injunction restraining the respondents, …from threatening or revoking the grant made to the Company as per the aforesaid Agreements…”
The 2nd and 3rd Defendants opted to challenge the award initially before the FCT High Court (as shown in Exhibits D8 and D10) and subsequently at the Court of Appeal …Exhibit D9 which is still pending.”
Further on page 555 of the Record, it stated as follows:
“…It seems to me therefore that the Development Lease Agreement, the arbitral proceedings and ensuing litigation/appeal have had a direct impact on the performance of the 1st Defendant’s obligations to the Plaintiff as contained in Exhibit P2/D5.
With great respect, the Claimant’s contention “that the Arbitral Award was against the 1st Defendant on the issue of provision of infrastructure and/or that it was held that the failure to provide all the infrastructure was entirely the fault of the 1st Defendant is not quite so…”
The Court also found that the issue of non-provision of the primary infrastructure on the land by the 2nd and 3rd Respondents which the Appellant claimed as part of the reason why it failed to deliver the house to the 1st Respondent on the due date was part of the frustration in the contract between the Appellant and the 1st Respondent. And it further found in support of frustration of the contract the order of the Arbitral Panel to both the Appellant and the 2nd and 3rd Respondents to agree on what constitutes primary and arterial infrastructure for the 2nd and 3rd Respondents and tertiary infrastructure for the Appellant within a month of the publication of the award.
In my opinion and humbly, the Appellant cannot totally exonerate itself or seek to appear helpless and purely a victim of the actions of the 2nd and 3rd Respondents. The Appellant remains responsible for the kind of agreement it enters into and is bound by the terms and conditions therein. It was incumbent on the Appellant to have ensured that the terms of the Agreement it was entering into with the 2nd and 3rd Respondents were clear and workable for its developmental projects. The Appellant is not permitted at the point of execution to complain. See the cases of JADESIMI V. EGBE 2003 36 WRN 79, UNION BANK OF NIGERIA V. OZIGI 1994 3 NWLR PT. 333 385 and E. N. NWAKA V. SPDC 2003 3 MJSC 136.
The Court stated as follows on page 557 of the Record:
“…It seems to me that it has become practically impossible for the Defendants (sic) to complete and deliver the apartment paid for to the Plaintiff.”
On page 545 of the Record from the evidence of the Chairman/CEO of the Appellant at the locus in quo, it would appear that the Units were not completed and ready for delivery as there is nothing in the Record indicative of the fact that the 1st Respondent was shown his house or that there was an attempt to so do by the Appellant.
In consequence of the foregoing findings of the Court, that the house for the 1st Respondent was not completed and therefore could not be delivered within the agreed time between the parties, the pending litigation/appeal between the Appellant and the 2nd and 3rd Respondents, the orders by the Arbitral Panel that are yet to be complied with, in my considered view and humbly, the grant of the alternative claim of the 1st Respondent by the Court was clearly in pursuit of substantial justice between the Appellant and the 1st Respondent.
The Appellant’s argument that there was miscarriage of justice cannot hold and is of no moment. The Court clearly stated from its finding as aforementioned that it was practically impossible for the Appellant to complete and deliver the 1st Respondent’s house in spite of the visit to the locus in quo. It was therefore correct for the Court to have ordered that the 1st Respondent’s money be refunded rather than for him to continue to wait and watch helplessly for when the Appellant would complete and deliver the house to him. See the cases of U.B.A. PLC. V. BTL INDUSTRIES LTD. 2006 NWLR PT. 1013 61, NWOLISAH V. PASCHAL NWABUFOH 2004 NWLR PT. 879 507 and OYEBANJI V. FOWOWE 2008 ALL FWLR PT. 410 786. Therefore, the 1st Respondent was entitled to recover from the Appellant the sum of money, N7,980,000.00 in full which he paid for the house. The assertion of the Appellant that it had committed the said sum towards the building of the house cannot avail it where the balancing scale is used herein, the party who parted with money and got nothing to show for it with no specific time of delivery in sight and the party who claimed to have used the said sum towards the house and yet unable to deliver the house.
In the result, the singular issue herein is resolved against the Appellant.
In that light, this appeal cannot be allowed it therefore fails and is accordingly hereby dismissed.
STEPHEN JONAH ADAH, J.C.A.: My learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA, obliged me a draft copy of the Judgment just delivered.
I agree with the reasoning and the conclusion that the appeal lacks merit and it be dismissed.
I for the same reasons, also find no merit in this appeal. The appeal is accordingly dismissed by me.
I order that the Judgment of the trial Court delivered on 31/07/2019, is upheld. No costs is awarded.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, ELFRIEDA O. WILLIAMS-DAWODU, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is dismissed.
The judgment of the Lower Court delivered by Peter O. Affen, J (as he then was) is hereby affirmed.
Appearances:
Mr. Victor Agunzi For Appellant(s)
Mr. Mercel Oru SAN with him Mr. Noah Adamu & Mr. Ogbeyelu Egelahba for 1st Respondent.
Ms. Betty A. Umegbulem with him Mr. Olanbe for 2nd & 3rd Respondent. For Respondent(s)
